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Mandatory Immigration Detention for U.S. Crimes: The Noncitizen Presumption of Dangerousness

Today in the United States, mandatory immigration detention imposes extraordinary deprivations of liberty following ordinary crimes — if the person convicted is not a U.S. citizen. Here, I explore that disparate treatment, in the first detailed examination of mandatory detention during deportation proceedings for U.S. crimes. I argue that mandatory immigration detention functionally operates on a “noncitizen presumption” of dangerousness. Mandatory detention incarcerates noncitizens despite technological advances that nearly negate the risk of flight, with that risk increasingly seen as little different regarding noncitizens, at least those treated with dignity. Moreover, this “noncitizen presumption” of danger contravenes empirical evidence, and diverges from parallel criminal pretrial detention reforms. Rather, it rests on stereotypes of dangerous, recidivist “criminal aliens” — even more salient to preventive detention determinations, given a noncitizen’s inherently speculative past. I preliminarily offer two theories for the “noncitizen presumption,” both reflecting expressive characteristics of immigration detention — government overcompensation for public “blaming the gatekeeper,” and complementarily, a social construct of noncitizens as invitees, derived from property law.